A few more thoughts on that SCOTUS decision for The Slants

Jazz ShawPosted at 10:41 am on June 20, 2017

We already had Allahpundit weigh in yesterday on the Supreme Court decision regarding The Slants and their battle to trademark the band name. He covered some of the important aspects of it quite well, but I wanted to take a quick look at two related aspects of the debate. One deals with the idea of “government speech” versus private speech and the other is the inevitable outrage and pushback coming from the Left in the past 24 hours.

All eight participating justices did agree on some points. They were unanimous in rejecting the argument that federal trademarks are the government’s own speech and thus immune from First Amendment scrutiny of any kind.

In 2015, in a 5-to-4 decision in Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas could refuse to allow specialty license plates bearing the Confederate battle flag because the plates were the government’s speech.

The debate here is over “government speech” vs either commercial speech or private speech. (Amazingly, those are all real things which are treated differently in a court of law.) The idea that the right of the government to “speak” as an entity is a bit dodgy to begin with, being something of an apples and oranges situation. But even if we’re to accept that concept, copyrights and trademark approvals shouldn’t apply here at all.

Think about that for a moment. Issuing a license of sorts, specifically for the Redskins trademark, isn’t the speech of the government. The team “spoke” when they designed the logo. If anything, this is simply the government saying in responses, “yes. We heard what you said. And now you can make money off of it and prevent other people from saying that without paying you.” With that in mind we ought to be able to toss the government speech part of the argument.

More interesting to me is the liberal response, exemplified by this opinion piece at USA Today by Daniel J. Kornstein. He starts off with the expected barrage of alarm bells over government-sanctioned bigotry and the collateral damage caused when the courts approve of slurs. By means of a solution he suggests that anyone wishing to “reclaim a slur” (which is what the Slants claim to be doing) should be forced to gain some broader consensus in their community. How one would define that in a court of law is not explained.

But the underlying message in Kornstein’s piece is delivered right up front when he criticizes the court for using a sledgehammer instead of a scalpel.

The Supreme Court’s ruling in The Slants case worries me; it looks more like a victory for government-sanctioned bigotry than a win for free speech. The court voided, on free speech grounds, a federal law barring “disparaging” trademarks — using a judicial sledgehammer in a case calling for a judicial scalpel.

Trademark enforcement is a powerful means for businesses to silence expression they view as harmful to their commercial or political interests. The holders of controversial or disparaging trademarks, such as sports teams with Native American symbols, can sue or threaten to sue people who criticize the use of such marks. The result may chill protest.

Some of this is simply too much of a mess to dissect here, such as the idea that holders of an “offensive” trademark could somehow chill protest by suing people who “criticize the use of such marks.” On a quick search I see not one example of a trademark holder successfully suing anyone for criticizing them… only for stealing from them by using the mark without permission. But be that as it may, the broader question has to do with the “nuance” requirements implied here.

What’s completely clear from this article is that, in the view of Kornstein and others, the Supreme Court needs to allow a more situational analysis of such cases. The result of such nuanced thinking would obviously be that some trademarks and logos are too offensive to be allowed while others might sneak in under the wire and be validated. That’s the “scalpel versus sledgehammer” argument. And I’m sure that works out just fine and dandy provided you’re the one holding the scalpel. Unfortunately, that’s not how the law works.

This is precisely the sort of situation which demands a sledgehammer. If there is to be a societal rejection of offensive trademarks or, in the case of reclaiming a slur, a standard for “collective action and community acceptance” (the author’s term, not mine), we have placed the court in an impossible quandary. How would such a thing be measured and who would be empowered to determine when that bar has been reached? And what of the free speech of those who disagree with where you set the bar?

In an open, capitalist society such as ours there is already a solution which is available, in place, and requires no intervention from the courts. If enough people find the name “The Slants” offensive and don’t buy their argument of reclaiming the term, then their products will not sell, they won’t make any profit off the trademark and it will disappear off the national radar. If enough people were genuinely upset about the Redskins, no seats would be sold for their games and their merchandise would remain on the shelves, The team would collapse. That’s all the judgement required in issues of potentially offensive speech, slogans or logos.

The Supreme Court broke out the sledgehammer on this issue and that hammer was long overdue. We can’t be handing out scalpels on this subject until you figure out how to get everyone to agree on where you begin doing surgery.